RICHMOND  A Virginia Beach man convicted of soliciting sex in a department store bathroom is challenging the state's sodomy law, which prosecutors have continued to enforce a year after the Supreme Court's landmark ruling in Lawrence v. Texas.

Lambda Legal, the gay rights group that handled the Lawrence case, filed a petition with the Virginia Court of Appeals Monday on behalf of Joel Singson, who was convicted of solicitation of sodomy last year.

His challenge follows a similar petition to appeal that was filed by another Virginia Beach man in May, and a case involving two inmates that was appealed to the Virginia Supreme Court earlier this year.

At issue in each of the cases is whether the ruling that struck down a Texas law against sodomy in private settings invalidates Virginia's law. Attorney General Jerry W. Kilgore maintains that Virginia's law is still enforceable against sodomy in public places, while opponents say the law should be stricken entirely.

Before the Lawrence decision, 13 states still had laws prohibiting sodomy between consenting adults, according to Lisa Hardaway, spokeswoman for Lambda Legal. She said she was aware of only two states  Virginia and North Carolina  still enforcing their sodomy laws after the ruling.

Singson, 36, was sentenced in February to six months in prison. His attorney, Greg Nivens, argues in the challenge that Singson should not have been prosecuted under an unconstitutional law.

"There are other laws that can apply here  the prostitution statute and indecent exposure  that cover public acts," said Greg Nivens, senior staff attorney at Lambda Legal's Atlanta office. "What's not available is use of the actual sodomy statute. ... The sodomy law is dead."

The prosecutor in the case, David Laird of the Virginia Beach Commonwealth Attorney's office, disagrees. Since Virginia's law makes no distinction between public and private acts, or between homosexual and heterosexual acts, it can still be enforced selectively, Laird said.

"If you can interpret it in a way that is constitutional, a judge is supposed to interpret it that way," he said.

Kilgore's office said it is prepared to defend the law.

"Our law is about public acts of sodomy," said Kilgore spokesman Tucker Martin. "We've made a decision that public acts of sodomy are still prosecutable and we'll stand by that."

In February, the attorney general's office won an appeal filed by Trondell Askew, who was convicted of performing sodomy on a fellow inmate in a prison yard at the Southampton Correctional Center and sentenced to three additional years.

The appeals court ruled that Askew could not object to the constitutionality of the statute in an appeal if his attorney did not first raise the objection during his trial.

Askew's attorney, Richard Railey Jr., said his client was tried and convicted before the Lawrence decision was handed down. He has appealed the decision to the Virginia Supreme Court.

The Virginia Court of Appeals is also deciding whether to hear the appeal of Andy Tjan, who was convicted of propositioning an undercover officer in a Virginia Beach department store bathroom last year.

Tjan, 35, was sentenced to a three-year suspended sentence.

His attorney, James Broccoletti, accused the judge in the case of "legislating" to make the anti-sodomy statute enforceable.

"I think (judges) are stepping in and parceling out the statute and making a legislative decision," he said. "I don't think the courts can read into the statute."

The Virginia General Assembly had several bills before it earlier this year that would have repealed or rewritten the law to conform with the Lawrence decision, but the majority-holding Republicans rebuffed them all.

The Virginia General Assembly had several bills before it earlier this year that would have repealed or rewritten the law to conform with the Lawrence decision, but the majority-holding Republicans rebuffed them all.

I'm very grateful to live in a state where the legislature follows its conscience and does what's right instead of trying to placate a bunch of leftists.

It is nice to see the peoples' representatives doing their jobs instead of cowering before nine (or in the case of Lawrence, 5) unelected dictators. If only our reps in Congress and the White House would show as much courage.

2
posted on 07/12/2004 6:41:17 PM PDT
by asmith92008
(If we buy into the nonsense that we always have to vote for RINOs, we'll just end up taking the horn)

I have always wanted one of these Constitutional "scholars" to show me where in the Constitution the SCOTUS is empowered to be the arbiter/interpreter of what is and isn't Constitutional. Because logic would dictate it lies within the executive branch's powers. Unfortunately, the Court used Marbury vs. Madison to seize this power and nobody (except Andrew Jackson) ever attempted to stop them.

Actually, that's the last place the framers would have placed such a power. The Executive branch was intentionally made the weakest of the three precisely because they were trying to get away from Crown rule, in which vast power was held by an individual. If we're not to hand that power to the SCOTUS, then the only other logical alternative would be the Congress. That creates a conflict of interest, as it's never going to rule that one of its own laws is unconstitutional.

The nice thing about giving the SCOTUS this power is that it's not subject to the whims of an individual, and there still remains one final check; the power to amend the Constitution. Do I like a lot of the rulings coming from the SCOTUS? Absolutely not - but I think I'd like a corrupt future Executive reinterpreting the second amendment to mean that I'm allowed to have two upper extremities even less.

Actually, Raoul Berger makes a pretty convincing case that judicial review is constitutional in Congress vs the Supreme Court. However, he makes an even stronger case that that limited power has been expanded beyond all scope, i.e. by incorporating the Bill of Rights against the states.

However, there is also a strong argument that the fact that all officers of state and federal government take an oath to uphold the Constitution, that they have an implied right to interpret the Constitution. After all ,what would happen if the SOTUS wunderkinds decided one day to decide slavery was constitutional again (see Dred Scot) then would state officials really have to swallow that tripe?

10
posted on 07/12/2004 8:32:30 PM PDT
by asmith92008
(If we buy into the nonsense that we always have to vote for RINOs, we'll just end up taking the horn)

There are also several counterarguments to those arguments. I'd have to dust off my con law notes, but Marbury was a very badly crafted and decided case. After all, the Court determined that it lacked jurisdiction. the rest is dicta and shouldn't have even been included.

11
posted on 07/12/2004 8:34:34 PM PDT
by asmith92008
(If we buy into the nonsense that we always have to vote for RINOs, we'll just end up taking the horn)

The only problem with that logic is that you can't unelect a Supreme Court justice. A "corrupt executive" or Congress lasts only as long as we let him. We're stuck with Ruth Bader Ginsburg, Souter and Stevens for life.

12
posted on 07/12/2004 8:36:44 PM PDT
by asmith92008
(If we buy into the nonsense that we always have to vote for RINOs, we'll just end up taking the horn)

I certainly oppose an unelected supreme court interfering and getting rid of sodomy laws but I think these laws are bad. Do most people realize that the vast majority of anti-sodomy laws don't even have exceptions for heterosexual married couples

14
posted on 07/12/2004 9:56:48 PM PDT
by newfarm4000n
(Taxes for social security is theft)

Actually it was only a handful of states that prohibited aberrant heterosexual acts like sodomy. Texas called it abberant but still permitted it as a legal act for heterosexuals.

If all sodomy is now legal (by privacy, "equal protection" would have permitted the total ban of sodomy on a state by state basis) why isn't prostitution legal? There are no fornication or adultery laws anymore prohibiting sex between unmarried partners. You can pay a babysitter to give unlicensed childcare in your home. It is a sex act between consenting adults.

The right of the Federal judiciary to strike down Federal laws that violate the Constitution is inherent in the very concept of the judiciary which was understood as part of the evolution of our jurisprudence during the pre-revolutionary colonial period. See Judicial Supremacy in America: Its Colonial and Constitutional History by R. Carter Pittman (who incidentally was notorious for his defense of States' Rights.)

The real issue here concerns the extent of the Supreme Court's authority in adjudicating between a State and her citizens. Article III, Sect. 2 gives the Federal courts authority over "Controversies between two or more States;  between a State and Citizens of another State [Modified by Amendment XI];  between Citizens of different States;  between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects."

Notice that the Federal courts are nowhere given authority in controversies between a State and citizens of that same State. Once a state citizen has appealed to the State's highest court, there is no further recourse provided under the Constitution. Period.

The Incorporation Doctrine, far more than Marbury v. Madison, is an example of the Supreme Court seizing power over the States totally on its own caprice, with neither the States nor the people having had any say in that matter. Frankly, any attempt to curb the Incorporation Doctrine would be insufficient, even if it could be done. The Fourteenth Amendment must be repealed in toto.

At issue in each of the cases is whether the ruling that struck down a Texas law against sodomy in private settings invalidates Virginia's law. Attorney General Jerry W. Kilgore maintains that Virginia's law is still enforceable against sodomy in public places, while opponents say the law should be stricken entirely.

Constitutional law just doesn't work the way Kilgore says it does. If a law is found un-Constitutional, the police can't make up their own limited version -- the legislature has to do that (and AFAIK has not done so in Virginia).

To make the point more clearly with an exaggerated hypothetical, suppose that a law is passed prohibiting any discussion of nuclear physics. Someone who sold the secret of the "suitcase nuke" to al-Qaeda is prosecuted under this law. In a different case, the Supreme Court (quite properly) finds this hypothetical law to be an infringement of First Amendment rights. The guy would get off scot-free, unless charged under some other law (such as the real-world laws that specificially address classified information and aid to criminal conspiracies).

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